Plaintiff in error, a New York corporation, seeks cancellation of an assessment of taxes upon its real property to pay for construction and operation of the Bronx Valley sewer. Westchester county, a necessary party under the local statute, demurred to the complaint upon the ground that it states no cause of action. The trial court over ruled
[261 U.S. 155, 159]
the demurrer. The Appellate Division reversed the judgment (Valley Farms Co. of Yonkers v. City of Yonkers, 193 App. Div. 433, 184 N. Y. Supp. 300), and the Court of Appeals affirmed this action, without opinion (231 N. Y. 558, 132 N. E. 887).

The complaint alleges--

Plaintiff in error owns certain designated lands in Westchester county assessed for taxes for the year 1918 for the benefit of the Bronx Valley sewer.

That under chapter 646, New York Laws of 1905, entitled 'An act to provide for the construction and maintenance of a sanitary trunk sewer and sanitary outlet sewer in the county of Westchester, and to provide means for the payment therefor,' and sundry amendments thereto, especially chapter 646, Laws of 1917, the Legislature attempted to designate the area benefited by the trunk and outlet sewers and to provide for taxing all property therein. The trunk sewer is 11 3/4 miles long; the outlet sewer 3 miles. Both are wholly within Westchester county. The former lies along the Bronx river. At a point near the south line of the county it connects with the outlet sewer, which extends thence westwardly under two high ridges and across Tibbetts Valley to the Hudson river.

That the sewer system carries house drainage only-no surface water, and throughout its entire course the grade is downward. The sewage flows by gravity. There are no pumping stations.

That east of and near Hudson river a high ridge runs north and south. Immediately east of this lies Tibbetts Valley; further east there is a second north and south ridge; then comes Bronx Valley, shut in on the east by a third ridge. The natural drainage of Bronx Valley is southerly into East river; Tibbet Valley also drains southerly, but into Harlem river. No natural drainage connection exists between the two valleys; they are separated throughout their entire length by the second ridge.

That the outlet sewer, through which the whole system discharges, extends from the trunk sewer in Bronx Valley
[261 U.S. 155, 160]
under the second ridge a great depth below the surface, thence across Tibbetts Valley and under the first ridge, also at great depth, to the Hudson river. Any connection with this sewer from Tibbetts Valley must be made therein, and lands there cannot be connected at all with the trunk sewer.

That about 2,500 acres-Lincoln Park section-of Tibbetts Valley is now connected with the outlet sewer; no other lands therein can use it, unless and until a connecting line, 4 miles long, is constructed, at a probable cost of $300,000.

That notwithstanding this limited possible use Tibbetts Valley is assessed to meet the cost of the entire system, just as the lands in Bronx Valley. Taxes for construction and maintenance are based wholly upon assessed valuations for general purposes. Each lot is taxed according to value and irrespective of benefits received. No power is conferred to reduce assessments in one section not benefited equally with others.

That the district was defined by the amendment of 1917, 12 years after the original act and 5 years after completion of the sewers. The first act limited the total cost to $2,000,000 and provided that commissioners should determine the benefited area after opportunity for hearings. Amendments have changed these fundamental provisions; the total cost exceeds $3,250,000, and the boundaries have been designated without notice to owners.

That the challenged assessments are upon valuations of both land and improvements and disproportionate to benefits. The board of supervisors is required to adopt a budget, which includes unconstitutional and unlawful items-among them cost of litigation and contingent fund for deficiencies.

That the act as amended prohibits assessments against lands within the sewer district when also in Mt. Vernon, but directs that a corresponding sum shall be
[261 U.S. 155, 161]
paid by levy upon all property, real and personal, within that city.

That plaintiff's lands have been illegally assessed. The act as amended violates the Fourteenth Amendment, by depriving plaintiff of property without due process of law and without just compensation, and by denying it equal protection of the laws. The assessments are a cloud upon plaintiff's title and greatly depreciate market values. There is no adequate remedy at law.

The prayer is for a decree declaring the assessments void, directing their cancellation and restraining collection, and for general relief.

Counsel for plaintiff in error states that:

'The question here involved is whether the statutes of the state of New York, under which the Bronx Valley sewer assessments were imposed over a large area of many square miles, in Westchester county, New York, are in contravention of due process of law under the Fourteenth Amendment of the Constitution of the United States.'

The argument proceeds thus--

The sewer system, intended for house drainage only, consists of a trunk sewer 11 3/4 miles long, in the Bronx Valley, connected with an outlet sewer extending westward 3 miles to the Hudson river. The act of 1905-chapter 646-provided that commissioners should prepare a map of the assessment district after notice to owners and opportunity to be heard. The supplemental act of 1917-chapter 646-disregards this map, substitutes definite boundaries and directs assessments upon all lands therein according to value, including improvements; all parcels to be treated alike.

That such assessments disregard the difference in conditions, locations, and benefits, and no notice or opportunity for hearing concerning the apportionments to particular parcels is provided for.
[261 U.S. 155, 162]
That plaintiff's Tibbetts Valley lands are so situated that they can never utilize any par of the sewer system, except the lower portion of the outlet sewer, and this will be possible only through costly connections not yet planned.

That the statutes are unconstitutional, in that they provide for no notice of hearing upon apportionment of the assessments; they direct assessments of all parcels of land according to values fixed for general taxation purposes irrespective of relation to the sewer, street frontage, depth or shape; they include improvements in assessed values and thereby adjoining lots of equal size are taxed for different sums. And they are " of such a character that there is no reasonable presumption that substantial justice generally will be done, but the probability is that the parties will be taxed disproportionately to each other and to the benefit conferred,' so that such legislative action is 'palpably arbitrary or a plain abuse."

The courts below have upheld that assessment under the Constitution and laws of the state. We are concerned only with application of the Fourteenth Amendment.

In Houck v. Little River District, the owners of a large area sought to enjoin collection of a tax of 25 cents per acre levied generally upon lands in
[261 U.S. 155, 163]
the district to pay preliminary expenses. They alleged that the lands varied greatly in value and that no benefits would accrue to theirs, some of which would be condemned and others damaged. The judgment of the state courts sustaining a demurrer to the petition was affirmed here. Speaking through Mr. Justice Hughes, this court declared:

'In view of the nature of this enterprise it is obvious that, so far as the federal Constitution is concerned, the state might have defrayed the entire expense out of state funds raised by general taxation or it could have apportioned the burden among the counties in which the lands were situated and the improvements were to be made. County of Mobile v. Kimball,
102
U.S. 691, 703
, 704 S.. It was equally within the power of the state to create tax districts to meet the authorized outlays. ... And with respect to districts thus formed, whether by the Legislature directly or in an appropriate proceeding under its authority, the Legislature may itself fix the basis of taxation or assessment, that is, it may define the apportionment of the burden, and its action cannot be assailed under the Fourteenth Amendment unless it is palpably arbitrary and a plain abuse. ...

'When local improvements may be deemed to result in special benefits, a further classification may be made and special assessments imposed accordingly, but even in such case there is no requirement of the federal Constitution that for every payment there must be an equal benefit. The state in its discretion may lay such assessments in proportion to position, frontage, area, market value, or to benefits estimated by commissioners.'

In Miller & Lux v. Sacramento Drainage District, supra, we said:

'Since Houck v. Little River Drainage District (1915)
239 U.S. 254
, the doctrine has been definitely settled that in the absence of flagrant abuse or purely arbitrary action a state may establish drainage districts
[261 U.S. 155, 164]
and tax lands therein for local improvements, and that none of such lands may escape liability solely because they will not receive direct benefits.'

Myles Salt Co., Ltd., v. Board of Commissioners, Gast Realty & Investment Co. v. Schneider Granite Co., and Kansas City Southern Ry. Co. v. Road Improvement District No. 6, supra, present facts deemed sufficient to show action 'palpably arbitrary and a plain abuse' of power. Here the allegations make out no such situation. All lands within the district ultimately may be connected with some portion of the sewer and we cannot say they derive no benefits therefrom or that any were included arbitrarily of for improper purposed.

It was unnecessary for the Legislature to give notice and grant hearings to owners before fixing the boundaries of the district so as to include their lands, and prescribing the method of taxation. And it is unimportant that the sewer had been completed before the boundaries of the present district were established. Wagner v. Baltimore, supra.

The state courts held that, as the rolls of local assessors are adopted for taxing property within the district, the right of owners to be heard as to values is adequately protected; and we think that under the circumstances they can demand no more.